Supreme Court Guidance On Document Access To Non-Parties

In Cape Intermediate Holdings v Dring [2019] UKSC 38, the English Supreme Court confirmed the extent of a non-party’s right to obtain documents used in court proceedings, and the principles to be applied when such a request is made. Clyde & Co review the decision and set out the following takeaways from the case:

  • The decision makes clear the breadth of the inherent jurisdiction of the courts and tribunals to order production of documents to third parties. The Supreme Court upheld paragraphs (i) and (ii) of the Court of Appeal order but replaced (iii) with an order that the application be listed to determine whether the court should require Cape to provide a copy of any other document, applying the principles from this decision.
  • As a result we may see more applications by third parties for documents. For example where they are considering whether to bring their own claim against the same defendant, or perhaps where they might be involved in other proceedings linked to the facts of the first set. This is subject to the caveat that non-parties will have to consider whether they can pass the relevant test.
  • For those concerned about an increase in these applications, r5.4C does allow parties to apply to the court in advance for a pre-emptive order restricting the release of statement of cases to non-parties. Whilst r5.4C does not state specific grounds for restricting access, previously reported applications have focused on preventing access to confidential or commercially sensitive information.
  • It is possible that further cases with differing facts and circumstances will provide guidance on the principles laid down in this decision.

See also the following reviews of this case:

About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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